Democratic U.S. Sen. Al Franken, a member of the Senate Judiciary Committee, said Tuesday he would oppose the nomination of a fellow Minnesotan to the 8th Circuit Court of Appeals and won’t consent to even hearing the nomination of Minnesota Supreme Court Justice David Stras.
Fellow Democratic Sen. Amy Klobuchar, also a Judiciary Committee member, tried to straddle the fence on Stras, applauding his credentials while seeming to defer to Franken’s attempt to scuttle the nomination.
While Franken’s formal objection makes clear where he stands, it won’t necessarily upend Stras’ nomination because Republicans control the Senate, and the Judiciary Committee has moved in the past to get around resistance from home-state senators who refuse to return so-called “blue slips” ahead of confirmation hearings. That said, nominees lacking that prior consent have faced trouble getting confirmed, with members of both parties citing tradition.
Franken issued a lengthy statement saying he is concerned that Stras is too conservative to gain his support. Stras was nominated for the post in May by President Donald Trump.
“Justice Stras’s professional background and record strongly suggest that, if confirmed, he would embrace the legacy of his role models and reliably rule in favor of powerful corporate interests over working people, and that he would place a high bar before plaintiffs seeking justice at work, at school, and at the ballot box,” Franken said. “The president should be seeking out judges who bridge the issues that divide us, but I fear that Justice Stras’s views and philosophy would lead him to reinforce those divisions and steer the already conservative Eighth Circuit even further to the right.”
Klobuchar hasn’t said as definitively how she would vote. In her own statement Tuesday, Klobuchar suggested that the White House should provide additional names for the court opening but said Stras “deserves a hearing before the Senate.”
Still, Klobuchar said Franken’s opposition should be respected.
“Under Senate practice, both senators from a judicial nominee’s home state must allow that nominee to have a hearing,” Klobuchar said. “Like Judiciary Chairman Chuck Grassley, I support the practice as it is a check and balance regardless of whether a state is represented by two Democrats, two Republicans or one Democrat and one Republican.”
A Minnesota courts spokesman said Stras was declining to comment on the developments.
Stras has been on Minnesota’s Supreme Court since his 2010 appointment by then-Gov. Tim Pawlenty, a Republican. Stras is a former University of Minnesota law professor and previously clerked for U.S. Supreme Court Justice Clarence Thomas.
The 8th Circuit Court of Appeals vacancy was created by the retirement of Judge Diana Murphy. The circuit covers seven Midwestern and Great Plains states, from North Dakota to Arkansas.
Franken’s full statement in opposition to Stras is below:
“As a member of the Senate Judiciary Committee, I take my obligation to scrutinize the views and philosophies of judicial nominees very seriously,” said Sen. Franken. “The women and men who sit on our federal courts wield enormous power over our daily lives, so it’s important to understand whether a nominee’s view of the law will make real our Constitution’s promise of justice and equality for all Americans, or will unfairly favor powerful interests over working families.
When President Trump announced the nomination of Minnesota Supreme Court Justice David Stras to the Eighth Circuit Court of Appeals, I said that Justice Stras is a committed public servant whose tenure as a professor at the University of Minnesota underscores just how much he cares about the law. That is undeniably true. But as I have familiarized myself with Justice Stras’s record—not just his past decisions, but his professional experience and past statements—I have grown concerned that, if confirmed to the federal bench, Justice Stras would be a deeply conservative jurist in the mold of Supreme Court Justices Clarence Thomas and Antonin Scalia, justices who the nominee himself has identified as role models.
Early in his career, Justice Stras worked as a law clerk for Justice Thomas, one of the Supreme Court’s most conservative members. Justice Stras has described Justice Thomas as a mentor, and at an event hosted by the conservative Federalist Society, Justice Stras talked about how the jurisprudence of Justice Scalia helped to shape his own views. He said, ‘I really grew up with a steady diet of Justice Scalia, and I’m better for it.’ Justice Scalia embraced a rigid view of the Constitution that favored powerful corporate interests, was blind to the equal dignity of LGBT people, and often refused to acknowledge the lingering animus in laws that perpetuate the racial divide. As a state court judge, Justice Stras has not often had occasion to consider cases raising these issues, but I am concerned that a nominee nurtured by such an ideology would likely seek to impose it on the litigants before him.
And as it turns out, there is good reason to be concerned about that. During the presidential campaign, then-candidate Trump proudly declared that he would ‘appoint judges very much in the mold of Justice Scalia.’ And to make certain that his nominees would espouse such views, President Trump outsourced the job of identifying them to the Federalist Society and the Heritage Foundation, deeply conservative interest groups that cast skeptical eyes on workers’ rights and civil rights. Those groups produced a list of conservative judges for then-candidate Trump to consider naming to the Supreme Court—a list that included Justice Stras.
I had hoped that, in recognition of our different views, President Trump would work with me to identify a consensus candidate—a nominee whose experience demonstrates an ability to set aside rigid beliefs in favor of finding common ground. But rather than work together to select a nominee who is a judicial moderate, the White House had already settled on Justice Stras before first approaching me, and the president nominated him despite the concerns that I expressed.
Justice Stras’s professional background and record strongly suggest that, if confirmed, he would embrace the legacy of his role models and reliably rule in favor of powerful corporate interests over working people, and that he would place a high bar before plaintiffs seeking justice at work, at school, and at the ballot box. The president should be seeking out judges who bridge the issues that divide us, but I fear that Justice Stras’s views and philosophy would lead him to reinforce those divisions and steer the already conservative Eighth Circuit even further to the right.
It is for those reasons that, after careful consideration, I have decided to oppose his nomination and not to return a blue slip to the Committee.”
Klobuchar’s statement on Stras:
“Justice Stras has served on the Minnesota Supreme Court for seven years. While I don’t agree with all of his decisions, I felt it was important to actually look in depth at his record. I learned that for the vast majority of the cases he has respected precedent and sided with the majority, which has included both Democratic- and Republican-appointed judges. He is also supported by former Supreme Court Justice Alan Page. While Justice Stras was not my choice for the 8th Circuit Court, it is my view that he deserves a hearing before the Senate.
I am also concerned that this position could simply go to a less independent judge from another 8th Circuit state (Missouri, Arkansas, Iowa, Nebraska, North Dakota or South Dakota) since this is not a permanent Minnesota position.
I also respect the fact that Senator Franken has an equal role to play here. Under Senate practice, both Senators from a judicial nominee’s home state must allow that nominee to have a hearing. Like Judiciary Chairman Chuck Grassley, I support the practice as it is a check and balance regardless of whether a state is represented by two Democrats, two Republicans or one Democrat and one Republican. The policy has resulted in decision-making for judges across party lines. This policy has held true throughout the entire Obama administration, including when Republicans ran the Senate and when Democrats ran the Senate. Changing this policy would have serious ramifications for judicial nominations in every state in the country. Given this important policy, and given Senator Franken’s view that Justice Stras should not be allowed a hearing in the Senate, the White House will need to provide additional names for the 8th Circuit position.
I have enjoyed getting to know Justice Stras throughout this process and I know he will continue to serve admirably on the Minnesota Supreme Court.”
Republican Party of Minnesota Chair Jennifer Carnahan also weighed in with a statement:
“In refusing to support Justice Stras for appointment to the 8th Circuit Court, Al Franken’s actions exhibit the worst form of partisanship. Many distinguished jurists, such as Chuck Webber, who serves on the Minnesota Supreme Court Commission on Judicial selection, and Robin Wolpert, president of the Minnesota State Bar Association both applauded Stras’ selection by President Trump. Stras is supported by Justice Page, Governor Dayton and former Governor Pawlenty, among many other lawmakers from both parties.
In fact, back in May, Franken himself described Stras as “a committed public servant whose tenure as a professor … underscores how much he cares about the law,” Now, in a defiant and childish manner, Franken says he can’t support Stras because President Trump selected Stras before he spoke to Franken. Franken’s extreme view on this appointment is wrong does a great disservice to Minnesota.”
The National Republican Senatorial Committee criticized Klobuchar:
“With her decision today, Senator Klobuchar chose to let Senator Franken do her political bidding, and denied a highly qualified judge the fair process he deserved. While Klobuchar hides behind procedural tactics, Minnesotans are left without the proper judicial representation they deserve.”